Emmanuel Snowden v Republic of Ghana
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males,Lord Justice Irwin |
| Judgment Date | 30 January 2018 |
| Neutral Citation | [2018] EWHC 198 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3512/2017 |
| Date | 30 January 2018 |
[2018] EWHC 198 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Irwin
and
Mr Justice Males
CO/3512/2017
APPEARANCES
Mr Rupert Russell (instructed by Noble Solicitors) appeared on behalf of the Appellant.
Ms Rosemary Davidson (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent.
The Issue
This is an appeal pursuant to s.103 of the Extradition Act 2003 from the decision of the Senior District Judge dated 26 th May 2017 holding that there was no bar to the extradition of the appellant to Ghana. The sole ground of appeal is that assurances received from the authorities in Ghana as to the prison in which the appellant would be held are insufficient such that there remains a real risk that if extradited he would be held in conditions which would breach his rights under Article 3 of the European Convention on Human Rights.
Background
The appellant was originally known as Howard Johnson but is now called Emmanuel Snowden. His extradition is sought to face trial for offences of fraud and theft. It is alleged that he misappropriated a total of £26,500.
The first extradition request was issued on 29 th March 2012. In a judgment dated 23 rd December 2013 the Senior District Judge found that the formal requirements of the request were met; the request contained evidence amounting to a prima facie case; the request was not an abuse of process; and the request was not barred by reason of the requested person's medical condition, diabetes, or by Article 8 of the ECHR. However, the appellant was discharged because the judge was not satisfied that if returned he would be held at Ankaful Prison and she found, after hearing evidence, that detention at any other prison in Ghana would breach the appellant's rights under Article 3. She made it clear to the appellant that the Ghanaian authorities might well renew the request.
A second extradition request was issued on 14 th January 2016. The appellant was arrested on 2 nd November 2016 and a hearing took place before the Senior District Judge on 21 st April 2017. The appellant challenged his extradition on two grounds, namely that the assurances now provided by the Government of Ghana were insufficient and the passage of time. The judge rejected the challenge based on the passage of time and that point has not been pursued on appeal. She accepted the assurances given and found that the appellant's extradition would be compatible with his rights under Article 3.
Legal framework.
The applicable legal principles are not in dispute.
A requested person will not be extradited if he can show strong grounds for believing that if returned he faces a real risk of being subject to torture or inhumane or degrading treatment: R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 2003 at [24]. Prison conditions in the requesting state may constitute such treatment depending on such matters as overcrowding and sanitation. It is unnecessary to say more about this because it is found as a fact, and is not challenged on appeal, that if the appellant is held in Ankaful Prison, the conditions, although harsh, would not reach the high threshold (or “minimum level of severity”) required to give rise to a real risk of inhumane or degrading treatment within the meaning of Article 3, but that conditions in other prisons in Ghana do give rise to such a risk.
In these circumstances the Ghanaian authorities have provided assurances that if returned the appellant will be held in Ankaful prison. As the judge rightly said, the sufficiency of the assurances is the critical issue in the case.
The law relating to such assurances was considered in MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, where the Supreme Court approved four conditions identified by Mitting J, sometimes called the Othman criteria, which had to be satisfied if the assurances were to carry sufficient credibility:
“i) The terms of the assurances had to be such that, if they were fulfilled, the person returned would not be subjected to treatment contrary to Article 3;
ii) The assurances had to be given in good faith;
iii) There had to be a sound objective basis for believing that the assurances would be fulfilled;
iv) Fulfilment of the assurances had to be capable of being verified.”
The assurances
During the first set of extradition proceedings the Attorney General's office of Ghana provided an assurance dated 18 th June 2013 setting out in detail the conditions at Ankaful Prison. In those proceedings this assurance was found to be insufficient because it did not amount to a “formal written assurance that Mr Johnson will be held at Ankaful”.
During the second set of extradition proceedings with which we are now concerned, further assurances and diplomatic correspondence were issued as follows.
First, on 26 th January 2017 there was a letter from Mr Emmanuel Adzator, the Director General of Prisons in Ghana. That letter was addressed to the Attorney General and Minister of Justice at the Attorney General's Department and was headed:
“ RE: REQUEST FOR THE EXTRADITION OF HAROLD DAVIES JOHNSON TO THE COMPETENT AUTHORITY OF THE UNITED KINGDOM. THE GHANA PRISON SERVICE'S COMMITMENT”
The text of the letter read:
“1. Ghana Prisons Services wishes to acknowledge receipt of your letter dated 20 th January, 2017 on the above-subject and its content duly noted.
2. The Ghana Prisons has in its custody nationals of countries whose extradition protocols have been ratified including the United Kingdom.
3. Given the circumstances of this case, the Ghana Prisons Service wishes to express its preparedness to accommodate Harold Davies Johnson at the Ankaful Maximum Security Prison which is a new purpose built facility designed to hold high risk prisoners as requested.”
That was followed by a letter dated 1 st February 2017 from the Attorney General's Department in Ghana, headed:
“COMMITMENT FROM THE PRISONS SERVICE OF GHANA. REQUEST FOR THE EXTRADITION OF HOWARD DAVIES JOHNSON TO THE COMPETENT AUTHORITY OF THE UNITED KINGDOM.”
That letter explained that the Director General of the Prisons Service has the capacity to determine where a prisoner should be kept. It encloses an original copy of the Ghana government's assurance letter from the Ghana Prison Service, signed by the Director General of Prisons in support of the request for assurances. It attached also a photocopy of the Ghana Prisons Service Act 1972.
On 14 th February 2017 the Director General of Prisons wrote further, this letter being addressed not only to the Attorney General and Minister of Justice at the Attorney General's Department but also to the Minister of the Interior in Ghana. It was a response to a number of issues which had been raised and began by giving:
“(i) Details of the cell accommodation in which the requested person will be detained.”
It is accepted that the information then provided was information...
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